January 30, 2009

Contained

5,743,942,
owned by Süd-Chemie, claims a desiccant container. "Desiccant containers are
frequently used to maintain a dry environment for products during storage or
shipping." Süd-Chemie sued Multisorb for infringement. In summary judgment, the
district court Obzillaed the patent in light of
4,487,791 (Komatsu). On appeal, Süd-Chemie cited three unmet limitations.
Only one was found non-obvious. But the patent survived.

January 29, 2009

Procrastination

John
Doll isn't treading water as interim PTO honcho. He's busting a move to not bust
a move examining patents. On a web page titled "Closing
of the United States Patent and Trademark Office," the USPTO announced a
"public roundtable discussion" February 12, about adopting a procedure for
deferred examination, "in response to suggestions from stakeholders in the
intellectual property (IP) community" who want to tread water. [Federal
Register pdf]

Engineered

IEEE
has issued its
2009
patent reform recommendations. First off, a better USPTO, but not expanding
their rule-making authority. Clarify software as patentable. And then they get
woolly. "Consider alternatives to patent protection." Where they lament patent
pendency. "Address recoveries for infringement." Their "recoveries" position
sounds like they know nothing about
damages or the Georgia-Pacific factors.

January 28, 2009

Abolition

The
membership of the House and Senate Judiciary committees for the 111th Congress
has been decided. What has also been decided is abolition of intellectual
property subcommittees in both houses. That puts any patent reform agenda, and
all its attendant issues, squarely before the full committee in each body. The
abolition thus puts a learning curve on more members, particularly in the House:
there are 29 in the House Judiciary Committee.

January 27, 2009

Non-Copyists

One
could argue that everything needed would eventually be invented. No need for
patent protection in a society content with its technology. Patents accelerate
invention, by having an incentive to invent: an exclusivity grant. So whether an
infringer copied a patent, or independently developed the technology, is moot.
Other than copying as a first step is smarter than reinventing from scratch.

Cream of the Crop

For
the third time, Rep. Darrell Issa (R-California) has reintroduced legislation
for a pilot program to help educate district court judges about patent cases.
Never mind that attorneys on both sides of a litigation are supposed to do that.
The more experienced judges are well known. If a judge needs help, that road has
been well paved, and brethren in other districts are a phone call or email away.
Never mind that the only extant problem with district courts handling patent
cases is in limiting choice of venue, a problem the CAFC introduced in TS Tech.
Maybe the pilot program ought to be educating the higher courts about patent
cases.

January 26, 2009

Rogue

In a procedurally bold opinion in In re Comiskey, __ F.3d __ (Fed.
Cir. 2009)(Dyk, J.), a panel has repudiated controlling precedent of the
court and indeed 180 years of practice since the Patent Act of 1839 that had
established a strict proscription against a judicial reviewing body of
Patent Office decisions playing de novo "examiner". Instead, the reviewing
court has had a limited statutory role that focused upon the rejection that
had been made by the Office.

Article Two

Following in the soiled footsteps of Article One Partners,
patent maimer by bounty hunting, Peer To Patent has added
a branch organization, Post-Issue Peer To Patent, seeking to "improve the quality of patents by providing a framework for ferreting out weak, non-meritorious patent claims in patents that have issued."

Searching

In
the teeth of recession, how can patent law firms sharpen their competitive
edges? According to Andy Gibbs, CEO of
PatentCafe.com, interpreting facts as a matter of law does the trick. "The
first Eureka moment will come when attorneys realize that the new family of IP
software tools does NOT require patent search expertise as much as it requires
legal interpretation to convert patent data to high value business information."

January 24, 2009

Fuddy Daddy

Advanced Micro Devices, playing David
to Intel's Goliath, is struggling to stay afloat. AMD is preparing to spin off
its manufacturing operations into a separate company, tentatively called the
Foundry Company. AMD will then focus purely on designing processor chips. This
past week, Intel sent a letter to AMD, requesting a meeting to air out whether
AMD's plan would violate patent cross-licensing agreements between the two. One
agreement was signed in 1976, the other in 2001.

January 23, 2009

The Front Burner

Hal
Wegner has expressed "reason for optimism that patents will not be put on a back
burner by the new President." Reason for optimism would be just the opposite:
that things would simmer down, on the back burner.

Non-Obvious Claiming; Obvious?

Arguably the
best-known bit of patent law: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C §101. Also, lamentably, commonly ignored during claims drafting.

January 21, 2009

Strong Showing

Friskit
sued Real Networks for infringing patents for multimedia file playback over the
Internet. Prior to KSR, the district court denied Real on obviousness.
Post-KSR, in a renewed motion, Obzilla danced a terminal playback,
killing them all. Friskit appealed, arguing three unanticipated limitations,
along with "secondary considerations indicative of nonobviousness." The CAFC
didn't second that. Friskit had to get real that it couldn't get Real.

Up and Coming

There
is a continuing shift in U.S. patent grants towards Asian companies. While IBM stayed on
top in 2008, at 4186 grants, #2 was Samsung (Korea, 3515), and #3 Canon (Japan,
2114). Of the top twenty patentees in 2008, 13 were foreign-based companies, all
but one Asian. Behind the numbers lie motivations.

January 20, 2009

The Bible

Every
once in a blue moon something incredibly good happens. Now on tap,
in draft, not quite bottled, is the "Patent
Case Management Judicial Guide," a rather incredible compendium covering all
aspects of patent litigation, not just judicial case management.

Nosedive

2008
will be remembered as the crashdown year in the 2nd Great Depression. The old
saw is that patent lawsuits are immune from recession, but the 2008 numbers tell
a different story. 2,605 patent suits were filed in 2008, down 8% from 2007.
2008 through July saw a 2% rise. But in the last five months of 2008, filings
plunged 23% from a year earlier.

January 17, 2009

Patent Strategies

Year
after year, IBM plows ahead filing, and getting, more U.S. patents than anyone:
4,186 gotten last year, the 16th consecutive year leading the patent pack.
Samsung came up to number two in 2008, with 3,515. HP has taken a different tack
the last few years, and fallen behind in the numbers.

Compact Prosecution

On the seventh office action of a competitive pricing patent application,
yet another non-final, a new rejection appears, besides the continual
findings of prior art pieces that never survive reply, owing to their
inadequacy in rendering the claims anticipated or obvious. A "computer-implemented method"
of changing price is not patentable in light of
§101.

January 16, 2009

Tiny

Bilski
has bilked Intel. The PTO patent appeals board rejected Intel's
claimed alternately calculating using software or processor hardware depending
upon whether the result was "tiny." Such calculation was found not to be "a
practical application of the mathematical algorithm because the result d,
a number, is not a tangible result because it is not a real-world result."
Taking no wooden nickels, the BPAI repeatedly refuse to "exalt form over
substance."

January 15, 2009

Stented

Boston
Scientific and Johnson & Johnson have a long-running battle of heart stent
patents. Both have had victories in their war, which started in 1997. Today the
victory was J&J's, overturning a unfavorable jury verdict, as Obzilla, the
patent grim reaper, takes another victim on appeal.

Bled

Canadian
Nortel Networks, bled dry by bad
management, has thrown in the towel. One analyst characterized Nortel as having
the trifecta for becoming corporate toast: "lack of innovation, a lack of
understanding their customers and a lack of marketing." Nortel, a heavy patent
hitter, has a patent portfolio worth snatching up. This will be just the first
of big patent fire-sales as the world slips into the Second Not-So-Great
Depression.

Damaging Apportionment

Scott
Shane has thrown another
log in the fire roasting the idea of apportionment as a means for figuring
patent damages. Apportionment was found to be bad news for patent value,
naturally, but also R&D, company valuation, and jobs. The harm would purportedly
be unevenly spread, affecting more industries reliant upon innovation.

January 14, 2009

Mental Method

Stephen
Comiskey filed a business method patent application, which he pursued to the
CAFC, which
ruled his idea an unpatentable "mental process." Petition for en banc
rehearing met with cacophony: limited to authorizing the panel to revise its
earlier flub, to a chorus of dissent. § 101 process patentability once again
gets a retread, this time intimating that novel computer software may be
patentable.

January 11, 2009

Sucker

National
Products (NPI) started an enforcement campaign with
6,666,420, filing "at least six separate lawsuits against various entities."
'420 claims suction cup mouting for portable equipment. Panavise, a competitor,
got spooked, so it filed a declaratory judgment motion, practically admitting
infringement, but of course seeking a ruling that it did not, as well as '420
being
invalid and unenforceable and everything vile. NPI told the court they hadn't
even seen Panavise's product. The district court told Panavise to take their
jitters elsewhere, and the CAFC agreed.

Bad Coordinates

Vehicle
IP sued General Motors and others over
6,535,743, claiming "a system for providing directions." The defendants
evaded infringement in summary judgment over construction of the term
"coordinate." The district court construed a coordinate as multiple numbers. The
defendants' systems used a single scalar value. 2-1, the CAFC agreed.

January 9, 2009

Obviously Flowing

Tokyo
Keiso tried pipe-hitting SMC for infringing
5,485,004, claiming a pipe volume flow meter. Figuring Obzilla would take
the "predictable next step", the district court found "the '004 patent obvious
as a matter of law." No argument from the CAFC on that. After all, if the prior
art isn't teaching away, it's teaching the way. Obzilla knows all the dance
steps, that nimble lug. It didn't help that the "patent specification concedes
as prior art most of the limitations of claims." Not much flow there.

January 7, 2009

'Peter Principle' Poster Boy Moves On

USPTO
Director Jon W. Dudas is rumored to be resigning. Since taking office in July
2004, Dudas has displayed unprecedented aptitude for infantile outbursts against
PTO employees and patentees; instilling opacity in agency operations enviable to
Soviet apparatchiks; astonishing duplicity in diminishing patent quality while
paying lip service to it; illegal, albeit futile gestures in changing
examination rules; slave-driving employees with counterproductive production
goals at the expense of decent examination; bodacious benign neglect of patent
pendency, a tacit admission that the PTO is a lousy place to work, and nothing
to be done about that except frenzied hiring; and roiling the patent community
into a state of nonplus. Dudas will be sorely missed by commentators needing
blog fodder.

January 6, 2009

Post-Board Muleage

Examiners consistently rely on baseless rejections, hoping applicants won't realize examiner ignorance, explore examiner incompetence, nor argue against examiner authority. Often, applicants amend or file RCEs, allowing examiners to milk applicants for all the counts they're worth. Rarer is the filing of an appeal brief, which can force examiners to abandon the charade and reopen prosecution. For rejections that actually make it to the board of appeals, and are subsequently overturned by the BPAI, it may be thought that allowance is in store. But Dennis Crouch
shone light on the fact that, about 20% of the time, examiner stubbornness lives on, even after being shot down by the board.

Cutting Farts

Whining
has become the American way. U.S. car makers, uncompetitive for over 30 years,
fly to Washington in private jets to beg for spare change - just enough to fill
their golden parachutes before bankruptcy. High-tech computer companies spend hundreds of millions to whine at Congress
because of highfalutin inventors wanting to enforce the patent laws. Now a
digital TV lobby has sprouted, CUTFATT, to whine about loafing consumers paying
a patent tax.

January 3, 2009

Shiver

"Abstract
software code is an idea without physical embodiment." So opined the Supreme
Court in
Microsoft v. AT&T, 2007. The high courts in recent years have done what they
could to denigrate software as unpatentable, most recently in a stunningly
incoherent ruling at the CAFC
In re Bilski.
This is the result of both scientific and economic ignorance by the courts, and political
brainwash by computer software corporations in this country, including,
incredibly, Microsoft and Apple. As emergent Asian nations race to overtake the
U.S. in every technological arena, the heavy patent action here is cutting off
our leading-edge nose to spite our face.

January 2, 2009

Rear View 2008

Patent
reform fell off Congress' radar while the USPTO hit a nadir in
bad management. The Supreme Court was mercifully mum, except for
exhausting
patents, while the CAFC went into the weeds on more than one occasion.

January 1, 2009

Nailed

Acumed
sued Stryker over
5,472,444, which claims an orthopedic nail for mending the upper arm bone.
Acumed got a permanent injunction, which was trashed by the CAFC in the wake of
eBay's
strict four-factor metric. On remand, same result: permanent injunction. On
appeal, the district court skated: found within its discretion. Tip for district
court judges: it's not how you rule, but how you nail it.

Sponsored by

"A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. The analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." - SCOTUS in KSR, 2007 -

"Words ought to be a little wild, for they are the assault of thought on the unthinking." - John Maynard Keynes -

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